Nationwide Ins. Co. of Amer. v. Bank of America, N.A.

FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONWIDE INSURANCE No. 15-56472
COMPANY OF AMERICA,
D.C. No. 2:14-cv-02244-DDP
Plaintiff,

and MEMORANDUM*

BANK OF AMERICA, N.A.,

Defendant-cross-defendant-
Appellee,

v.

SHIRLEY BROWN, an individual,

Defendant-cross-claimant-
Appellant.

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding

Submitted April 11, 2017**

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.

Shirley Brown appeals pro se from the district court’s judgment on behalf of

Bank of America, N.A. in an interpleader action brought by Nationwide Insurance

Company of America. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s dismissal of Brown’s cross-complaint under Federal

Rule of Civil Procedure 12(c). Arrington v. Wong, 237 F.3d 1066, 1069 (9th Cir.

2001). Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

Brown’s challenge to Mortgage Electronic Registration Systems, Inc.

(“MERS”) assignment of her deed of trust in 2013 fails because Brown agreed in

the Deed of Trust that MERS would serve as beneficiary with power to exercise

the rights of the lender. See Siliga v. Mortgage Electronic Registration Systems,

Inc., 161 Cal. Rptr. 3d 500 (Ct. App. 2013), disapproved of in part on other

grounds by Yvanova v. New Century Mortg. Corp., 365 P.3d 845 (Cal. 2016)

(“California courts have held that a trustor who agreed under the terms of the deed

of trust that MERS, as the lender’s nominee, has the authority to exercise all of the

rights and interests of the lender . . . is precluded from maintaining a cause of

action based on the allegation that MERS has no authority to exercise those

rights.”). The allegation that the original lender had its business charter revoked

prior to the challenged assignment does not affect MERS’s ability to act as

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beneficiary under the deed of trust.

To the extent that Brown challenges the validity of the purported

securitization of her loan, she lacks standing to raise such a challenge. See, e.g.,

Saterbak v. JP Morgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 796 (Ct. App.

2016) (holding that an assignment of a loan into a securitized trust that was

allegedly forged or untimely was merely voidable and, therefore, the borrower

lacked standing to challenge its validity). We reject as without merit Brown’s

contention that the purported securitization of her loan affected the enforceability

of the note or deed of trust.

The district court did not abuse its discretion in granting Bank of America’s

request for judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

Cir. 2001) (setting forth standard of review).

We reject as without merit Brown’s contentions that the district court lacked

jurisdiction to enter judgment or that it otherwise erred in disbursing the

interpleaded funds to Bank of America.

We do not consider arguments and allegations not specifically and distinctly

raised and argued in the opening brief, or raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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